Unofficial Opinion 2010-1

August 23, 2010

To:

Representative, District 83

Re:

The Open Meetings Act, O.C.G.A. § 50 14 1, applies to the Drug Utilization Review Board created by the Georgia Department of Community Health.

You have requested my opinion whether the Drug Utilization Review Board (hereinafter referred to as the “Board”) created by the Georgia Department of Community Health (“DCH”) is subject to the Open Meetings Act (the “Act”), O.C.G.A. §§ 50‑14‑1 through 50‑14‑6. It is my opinion that the Open Meetings Act does indeed apply to the Drug Utilization Review Board and it should act in accordance with the requirements of this law in conducting its meetings.

The purpose of the Drug Utilization Review Board

The Board is authorized by the Social Security Act, 42 U.S.C. § 1396r‑8(g). Its purpose is to review drug studies and drug therapies and make recommendations to DCH concerning the list of drugs to be approved for use through the Medicaid and PeachCare programs. The Board meets quarterly and consists of 20 members, all of whom are appointed by the Commissioner of DCH. The members include physicians, pharmacists, members of the academic community, and a consumer advocate.

The Board’s members do not include any members of DCH’s governing body. The Board also is not a committee of DCH’s members created by its governing body. The Board generally makes recommendations, but not decisions, on which drugs will be granted preferred status. Additionally, the Board may review and discuss the release of recent clinical evidence and treatment guidelines, discuss retrospective drug review results, and provide recommendations as it relates to clinical and educational drug interventions for providers. In these matters, the Board is acting in more than an advisory capacity.

At least sixty days prior to each Board meeting, DCH posts on its website the medications and drug therapies which are under review and will be discussed at the upcoming Board meeting. Drug manufacturers may provide comments and input to SXC Health Solutions (“SXC”), DCH’s pharmacy benefits manager, through its vendor NorthStar HealthCare Consulting (“NHC”). SXC, in conjunction with NHC, hosts a manufacturer’s forum at least thirty days prior to the Board meeting, during which manufacturers are allowed to present to NHC a thirty-minute presentation regarding their respective drug(s) under review. Manufacturers also may present written comments to NHC in lieu of attending the manufacturer’s forum. Comments and inquiries submitted to NHC are communicated to the Board via oral communications and written materials at its regularly scheduled meeting. Materials submitted electronically to NHC are forwarded electronically to the Board. Concurrent with the clinical drug information submitted to SXC, drug manufacturers submit financial information regarding drug pricing to Goold Health Systems (“GHS”), the state’s rebate service administrator which, like SXC, is a DCH contractor.

At the Board meeting, Medicaid Fee-For-Service (“FFS”) patients, advocates, healthcare providers, and speakers for organized coalitions or special interest groups on behalf of Medicaid FFS patients are allowed to speak during a consumer comment session. In addition to the consumer comment session, clinical information and information presented at the manufacturer’s forum is presented to the Board during the open session. As part of the Board meeting, an executive session may also be conducted. During the executive session providerand/patient specific information may be presented to the Board for discussion. Also during the executive session GHS presents financial information related to the drugs currently under review. The Board reviews and discusses the financial information and formulates its recommendations to DCH. Once recommendations are formulated by the Board, the executive session is concluded and the open session reconvenes. The Board’s recommendations are verbally communicated to the participants attending the meeting. The Board’s recommendations also are included in the written minutes of the Board meeting and are posted to the DCH website. Manufacturers may request an appeal of the recommendations to DCH within ten business days following the Board meeting. DCH, through its Pharmacy Unit, makes an independent determination on the approval of drugs and which will receive preferred status. In doing so, DCH may either accept or reject the Board’s recommendations. DCH then posts its decisions on its website.

The Open Meetings Act

The Georgia Open Meetings Act provides that in most circumstances a “meeting” of a governmental agency or entity will be open to the public. O.C.G.A. § 50‑14‑1(b). A meeting of a covered body may only be closed under certain statutory circumstances and only by following a prescribed statutory procedure. O.C.G.A. §§ 50‑14‑3, 50‑14‑4.

The Georgia Open Meetings Act . . . intends to prohibit “closed meetings which engender in the people a distrust of its officials who are clothed with the power to act in their name.” McLarty v. Board of Regents, 231 Ga. 22, 23 (1973). The Act requires that any meeting of a “governing body of an agency or any committee thereof . . . at which official business or policy of the agency is to be discussed or at which official action is to be taken” be made open to the public. Crosland v. ButtsCountyBd. of Zoning Appeals, 214 Ga. App. 295, 296 (1994). It is to be “broadly construed to effect its purposes of protecting the public and individuals from closed-door meetings.” Kilgore v. R.W. Page Corp., 261 Ga. 410, 411 (1991). The limited exceptions to its requirements are enumerated at O.C.G.A. [§] 50‑14‑3. While the mandates of openness must be read broadly, these statutory exceptions must be narrowly construed. Kilgore, 261 Ga. at 411.

1998 Op. Att’y Gen. U98-3, at 145-46.

While the language of the Act, O.C.G.A. § 50‑14‑1(a)(2), provides that it applies to a “gathering of a quorum of the members of the governing body of an agency or of any committee of its members,” case law has further expanded the scope and application of the Act. In evaluating what entities are in fact covered under the Act, both the Georgia Supreme Court and the Court of Appeals of Georgia have provided guidance.

In Red & Black Publishing Co. v. Board of Regents, 262 Ga. 848, 853 (1993), the supreme court held that “[b]y the Act's express language, the test for its applicability is two-pronged: first, is the meeting one of a ‘governing body of an agency’ or any committee thereof?; and second, is the meeting one ‘at which official business or policy of the agency is to be discussed or at which official action is to be taken[?]’” In determining whether the first prong of this test has been met, the supreme court recognized in Red & Black that the delegation of official responsibilities or authority to another body or committee by a public agency may render the meetings of the body or committee subject to the requirements of the Open Meetings Act. Red & Black, 262 Ga. at 854. This may be true even though the body or committee does not expressly fall within the definition of a covered entity under the Act, because the delegated authority has become the vehicle through which the public agency is carrying out its responsibilities. Id.

The court of appeals has followed the guidance of the supreme court in applying the Open Meetings Act to entities that do not expressly meet the definition of a “covered agency” under the Act. SeeJersawitz v. Fortson, 213 Ga. App. 796 (1994); See alsoNorthwest Ga.Health Sys. v. Times-Journal, 218 Ga. App. 336, 339-40 (1995) (“[T]he trial court in the case sub judice was authorized to conclude on the facts before it that Northwest and Promina, as vehicles for public agencies, were ‘subject to the [Open Meetings] Act.’”) Indeed, in Jersawitz, in reviewing whether an advisory group made up of private citizens and members of the governing body of the Atlanta Housing Authority regarding an Olympic redevelopment project was subject to the Act, the court of appeals concluded:

This committee acted as a vehicle for AHA to carry out its responsibility to review the proposals submitted to the agency, and because of the responsibility assumed by this committee with the knowledge and full acquiescence of the agency, the agency cannot hide behind the committee and assert that its governing body did not create it.

Jersawitz, 213 Ga. App. at 799. The court then concluded that this advisory group which made only recommendations was nonetheless subject to the requirements of the Open Meetings Act because the group “was a vehicle for the agency to carry out its responsibilities in reviewing and recommending proposals.” Id.[1]

The inquiry then becomes whether, even if the Board is sometimes only making recommendations to DCH on which drugs should be given a preferred status for purchase, the Board has otherwise become the vehicle through which DCH meets the requirements of the Social Security Act, 42 U.S.C. § 1396r‑8(g), in making its decisions regarding the purchase of medications. It appears the answer to that question is yes. The Board is the vehicle by which DCH is complying with the requirements of the Social Security Act in reviewing which drugs should be given preferred status. While DCH is not bound by those recommendations, it is DCH’s vehicle for reviewing that data. Additionally, the Board may on occasion provide other services for DCH which go beyond the scope of merely making recommendations.

The second prong of this test is satisfied if official business or policy of the agency is to be discussed or presented or if official action is to be taken at the meeting. The Act also applies if recommendations on any public matter, official business, or policy to the governing board are to be formulated, presented, or discussed by a committee. Although no official action is taken at the Board meetings, the Act only requires that official agency business or policy be discussed or presented, whether or not official action is actually taken. See O.C.G.A. § 50‑14‑1(a)(2). Identifying the list of drugs to be given preferred status is official DCH business. As stated above, the Board reviews the information presented to it by NHC, discusses prospective drugs, and makes recommendations to DCH at the Board meetings. Given that the mandated statutory preference is that meetings of governmental entities should be open to the public and that any exceptions must be narrowly read, I must conclude that the meetings of the Board are subject to the Act.

Having concluded that the Board’s meetings are open, I also note that, should the need arise, the Board may close its meetings in accordance with the procedures outlined in O.C.G.A. § 50‑14‑4. That being said, it is up to DCH to make the decision regarding whether to close any Board meeting. The decision to close a meeting, however, must be made on a case-by-case basis and supported both by the facts of the particular situation and the affidavit of the presiding officer justifying the closure. See O.C.G.A. § 50‑14‑4 (b).

Additionally, you have asserted that DCH is prohibited from sharing pricing information with the Board. As you have noted, generally federal law requires that pharmaceutical pricing information submitted by manufacturers remain confidential. See 42 U.S.C.S. § 1396r‑8(b)(3)(D). However, that prohibition on disclosing pricing information refers only to information disclosed by manufacturers pursuant to either 42 U.S.C.§ 1396r‑8(b) or to an agreement with the United States Secretary of Veterans Affairs. Seeid. Therefore, it does not appear that 42 U.S.C.S. § 1396r‑8(b)(3)(D) applies to interactions between DCH and the Board for purposes of your inquiry.

Therefore, it is my opinion that the Open Meetings Act, O.C.G.A. § 50-14-1, applies to the Drug Utilization Review Board created by Georgia Department of Community Health.

Prepared by:

Michelle Townes

Assistant Attorney General

[1] In making this determination, the court of appeals distinguishes its opinion from the prior opinion of the Georgia Supreme Court in McLarty, which had held that the Open Meetings Act did not apply to purely advisory bodies, by saying that the General Assembly had amended the definition of “meeting” after the McLarty opinion. Nonetheless, the supreme court has cited McLarty with approval in its decision in Red & Black, 262 Ga. at 853, and has itself not overruled McLarty.